Case 2:18-cr-00134 Document 41 Filed 08/28/18 Page 1 of 3 PageID #: 302 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON UNITED STATES OF AMERICA v. CRIMINAL NO. 2:18-cr-00134 ALLEN H. LOUGHRY II MOTION IN LIMINE REGARDING DEFENDANT’S SELF-SERVING OUT-OF-COURT STATEMENTS Comes now the United States of America, by Philip H. Wright and R. Gregory McVey, Assistant United States Attorneys for the Southern District of West Virginia, and files this Motion in Limine to preclude the introduction by Defendant of self-serving, exculpatory statements. Any such statement is hearsay and is inadmissible by Defendant. During the course of the investigation of this case, investigating agents conducted several interviews with Defendant. Those interviews contain self-serving statements, which may be viewed as exculpatory. For example, Defendant expressed his disagreement with the manner in which the West Virginia Supreme Court of Appeals spent public funds. He also expressed concerns over the lack of fiscal oversight by the other justices and court administration. A statement is not hearsay if “[t]he statement is offered against a party and is (A) the party’s own statement, in either an individual or representative capacity or . . . (C) a statement by a person authorized by the party to make a statement concerning the subject.” Fed. R. Evid. 801(d)(2)(A) and (C). Neither Defendant nor any defense witness, however, may offer Defendant’s out-ofcourt statements into evidence. Such statements are hearsay pursuant to Rule 801 and are not Case 2:18-cr-00134 Document 41 Filed 08/28/18 Page 2 of 3 PageID #: 303 “admissions by a party opponent” under Rule 801(d)(2) when offered by the party himself, rather than the party’s “opponent.” United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996) (“Admissions by a party-opponent are not considered hearsay and therefore can be admitted against that party . . . . The rules do not, however, provide an exception for self-serving, exculpatory statements made by a party which are being sought for admission by that same party.”); see also, United States v. Yousef, 327 F.3d 56, 153 (2d Cir. 2003) (“[W]hile the Government was free to introduce the statement as an admission by a party-opponent, see Fed. R. Evid. 801(d)(2)(A), [the defendant] had no right to introduce it on his own.”). Based on the above, the United States moves this court to preclude Defendant from introducing his self-serving statements at trial. Respectfully submitted, MICHAEL B. STUART United States Attorney By: s/R. Gregory McVey R. GREGORY McVEY Assistant United States Attorney WV State Bar No. 2511 300 Virginia Street, East Charleston, WV 25301 Telephone: 304-345-2200 Fax: 304-347-5104 E-mail: greg.mcvey@usdoj.gov PHILIP H. WRIGHT Assistant United States Attorney WV State Bar No. 7106 300 Virginia Street East Room 4000 Charleston, WV 25301 Telephone: 304-345-2200 Fax: 304-347-5104 Email: philip.wright@usdoj.gov 2 Case 2:18-cr-00134 Document 41 Filed 08/28/18 Page 3 of 3 PageID #: 304 CERTIFICATE OF SERVICE It is hereby certified that service of the foregoing “MOTION IN LIMINE REGARDING DEFENDANT’S SELF-SERVING OUT-OF-COURT STATEMENTS” has been electronically filed and service has been made on opposing counsel by virtue of such electronic filing on this 28th day of August, 2018, to: John A. Carr, Esq. John A. Carr Attorney at Law, PLLC 179 Summers Street, Suite 209 Charleston, WV 25301 s/R. Gregory McVey R. GREGORY McVEY Assistant United States Attorney WV State Bar No. 2511 300 Virginia Street, East Charleston, WV 25301 Telephone: 304-345-2200 Fax: 304-347-5104 E-mail: greg.mcvey@usdoj.gov 3